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Court of Criminal Appeal 24 October 2008

Regina v HENRY; Regina v GRAVETT; Regina v SWANSSON

[2008] NSWCCA 248

Drugs
CRIMINAL LAW TRIAL SEPARATE TRIALS FOR CO OFFENDERS ERROR IN EXERCISE OF DISCRETION ORDERS FOR SEPARATE TRIALS VARIED

Citation: Regina v HENRY; Regina v GRAVETT; Regina v SWANSSON [2008] NSWCCA 248
Court: Court of Criminal Appeal, New South Wales
Date: 24 October 2008
Judge(s): McClellan CJ at CL, Nettle AJA, Simpson J

Background

Three accused men faced charges relating to the importation of MDMA (ecstasy) into Australia in December 2003. A container ship docking in Melbourne was found to be carrying approximately 23 kilograms of ecstasy concealed in the foam lining of bar refrigerators. Two of the accused (Henry and Gravett) were charged with conspiracy to import prohibited imports. The third (Swansson) was charged with aiding, abetting, counselling and procuring the attempted importation by two other individuals.

The matter had a lengthy procedural history, including prior trials involving related co-accused. When the three men were presented for trial together in September 2008, each applied for an order to be tried separately. Judge Sweeney of the District Court ordered that all three accused be tried separately from one another, meaning three distinct trials would be required.

The Director of Public Prosecutions appealed that order pursuant to s 5F of the Criminal Appeal Act 1912, arguing that several aspects of the primary judge's reasoning were in error and that the orders went further than was warranted.

  • Whether the primary judge erred in finding that the case against Swansson was substantially different from the cases against Henry and Gravett, justifying his separate trial.
  • Whether the primary judge erred in finding that evidence proposed to be led from a co-accused (Alchikh) on behalf of Swansson created a real risk of positive injustice to Henry.
  • Whether the primary judge incorrectly characterised the factual basis for a prior separate trial order involving Swansson.
  • Whether the primary judge erred in finding that evidence Henry proposed to give about telephone intercepts created a real risk of substantial prejudice to Gravett.
  • Whether there was an adequate basis to order that Gravett be tried separately from Swansson.

Decision

The Court of Criminal Appeal upheld some of the Crown's grounds of appeal and rejected others, ultimately allowing the appeal in part.

On the first two grounds, Nettle AJA (with McClellan CJ at CL and Simpson J agreeing) found that the primary judge had not erred. The case against Swansson was indeed substantially different from those against Henry and Gravett, and no error was established in the conclusion that Alchikh's proposed evidence on behalf of Swansson could create a real risk of positive injustice to Henry. The third ground, concerning whether the primary judge had misread a prior order's factual basis, was also rejected on the basis that she had not made the finding attributed to her.

The Court found error, however, in the primary judge's treatment of Henry's proposed evidence about telephone intercepts. Henry intended to give evidence explaining calls between himself and King, to which Gravett was not a party. Those calls were, in any event, admissible against Gravett because they implicated him regardless of their subject matter. The primary judge had failed to account for this when concluding that the telephone intercept evidence created a real risk of substantial prejudice to Gravett, and that omission vitiated the exercise of discretion.

On the fifth ground, the Court observed that the primary judge's reasons provided no identifiable explanation for ordering Gravett's separate trial from Swansson. That said, the Court noted the practical consequence: because Swansson still needed to be tried separately from Henry, at least two trials were unavoidable regardless. The most appropriate resolution was for Swansson to be tried alone, while Henry and Gravett were tried together.

Orders Made

  • The orders made by the District Court below were set aside.
  • David Anthony Swansson is to be tried separately and apart from Peter James Henry and Hugh William James Gravett.
  • Subject to further order, Peter James Henry and Hugh William James Gravett are to be tried together.

Key Takeaways

  • The Court of Criminal Appeal confirmed that a substantial difference between the case against one accused and those against co-accused can justify a separate trial order, and the primary judge's finding to that effect was not disturbed.
  • Where proposed defence evidence from a witness (here, a co-accused who pleaded guilty) could create a real risk of positive injustice to another accused at the same trial, that risk may support an order for separate trials.
  • A failure to account for evidence that is admissible against an accused regardless of the separate trial question can constitute an error that vitiates the exercise of discretion to order separate trials.
  • Absent any stated reasoning, a separate trial order may lack an adequate basis, though this will not necessarily change the ultimate outcome where the appropriate orders can be reworked to achieve a just result.
  • In dismissing part of the appeal, the Court reconfigured the trial arrangements rather than simply restoring the primary orders, reflecting that the appropriate remedy is to exercise the discretion afresh where error is established.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 5F
- Criminal Code (Cth), ss 11.1(1), 11.5
- Customs Act 1901 (Cth), s 233B(1B)

Cases
- House v The King [1936] HCA 40; (1936) 55 CLR 499
- Lui Mie-Lin v The Queen [1989] 1 AC 288
- R v Alexander [2002] VSCA 183; (2002) 6 VR 53
- R v Baartman (CCA, 6 October 1994, unreported)
- R v Bikic [2000] NSWSC 223; (2000) 112 A Crim R 163
- R v BWM (1997) 91 A Crim R 260
- R v Chami [2002] NSWCCA 136; (2002) 128 A Crim R 428
- R v Darby [1982] HCA 32; (1982) 148 CLR 668
- R v Darrington and McGauley [1980] VR 353
- R v Dinh (NSWSC, Wood CJ at CL, 15 September 1999, unreported)
- R v Dinh [2000] NSWCCA 536
- R v Ditroia and Tucci [1981] VR 247
- R v Georgiou [1999] NSWCCA 125
- R v Gibb and McKenzie [1983] 2 VR 155
- R v Jones and Waghorn (1991) 55 A Crim R 159
- R v Matovski (1989) 15 NSWLR 720
- R v Middis (NSWSC, Hunt J, 27 March 1991, unreported)
- R v Piller (1995) 86 A Crim R 249
- R v Su [2003] VSC 306; (2003) 142 A Crim R 379
- Swansson v R (Cth) [2008] NSWCCA 56
- Swansson v R; Henry v R [2007] NSWCCA 67; (2007) 168 A Crim R 263
- Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41